Briefing on Governor’s Judicial Appointments Powers and Processes

On Tuesday, May 19th, the National Governors Association hosted its monthly briefing for Governors' legal counsel. The briefing discussed state judicial selection processes, including considerations for Governors when making judicial appointments.

Governors play an active role in the state judicial selection process. These processes differ across jurisdictions, with states and territories using a variety of methods to select a judge depending on the level of state court (i.e., trial or appellate) and what type of judicial vacancy is being filled.

Though each state has a unique set of guidelines governing how they fill their state and local judiciaries, there are five main methods. States may apply more than one of the five methods across different levels of courts or use a hybrid approach:

• Partisan elections. Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
• Nonpartisan elections. Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
• Gubernatorial appointment. Judges are appointed by the Governor, and may require approval from the legislative body or other governmental body.
• Legislative elections. Judges are selected by the state legislature.
• Assisted appointment (also known as merit selection or the Missouri Plan). A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the Governor, who appoints a judge from the list. After serving an initial term, the judge must be confirmed by the people in a yes-no retention election to remain on the court. At the state supreme court level, selection methods are further specified.

In the majority of states, Judicial Nominating Commissions (JNCs), or similar independent bodies, are assembled to help with the judicial appointment process by vetting candidates for judicial vacancies and sending a list of qualified candidates to the appointing authority, typically the Governor. The structure and membership of JNCs varies, but the Governor usually appoints at least some of its members.

Many Governors consider their judicial appointments, who may serve for decades after the Governor leaves office, as a significant part of their legacy. Governors may consider many factors when selecting judges to nominate for state court appointments, including experience of candidate, community engagement, political ideology, and diversity. Other attributes may include diligence, competence, demeanor/temperament, impartiality, and integrity/character. Governor's legal counsel provides a crucial role in assessing potential candidates. To that end, each office may establish their own framework for desired qualifications as part of their respective selection process.

NGA holds monthly briefings for Governors' legal counsel. Please reach out to Lauren Dedon ([email protected]) and Maria Kearl ([email protected]) for additional information.